Constitutional Law Commons^™

Two Approaches To Equality, With Implications For Grutter, Keith N. Hylton

Faculty Scholarship

The question “what is equality?”, applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: equality is when traditionally-recognized paths to advancement do not give preference to or disadvantage an individual because of his race. Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. Nozick rejected end-state theories of justice in distribution. I …

Affirmative Action After Sffa, Jonathan Feingold

Faculty Scholarship

In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.

Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger …

Mutually Intelligible Principles?, Andrew J. Ziaja

Pace Law Review

Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation …

Investigative Deception Across Social Contexts, 22-14 Knight First Amend. Inst. (Dec. 16, 2022), Alan K. Chen

Sturm College of Law: Faculty Scholarship

This essay explores investigative deceptions, intentional lies used to gather information that is in the public interest, across different areas of law. In some contexts, such falsehoods are viewed as producing great social benefits. For example, civil rights laws embrace intentional lies by testers to smoke out discriminatory conduct. Under federal labor law, union 'salts' are allowed to hide their identity and acquire jobs with employers whose workers they wish to organize. In most cases, law enforcement officers may engage in elaborate subterfuges when operating 'stings' and interrogating witnesses. In these contexts, the law permits a person to lie in …

Is There A Constitutional Common Good?, R. George Wright

Journal of Catholic Legal Studies

(Excerpt)

Identifying and pursuing some widely shared idea of the common good seems central to a sustainable constitutional order. This may seem especially true in an era of deep political division. The problem, though, is that such political division may indeed heighten the need for recognizing and promoting a shared constitutional common good, while, at the same time, preventing such an identification and pursuit of any such common good. What is needed is a way to disrupt this vicious circle. This Article is an illustration of the operation of this vicious circle and, more optimistically, a proffering of the means …

A World Without Roe: The Constitutional Future Of Unwanted Pregnancy, Julie C. Suk

William & Mary Law Review

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing …

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader

Law Faculty Scholarship

“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …

Book Review: Kermit Roosevelt Iii, The Nation That Never Was: Reconstructing America's Story, Ainslee Johnson-Brown

ConLawNOW

This review summarizes the key thesis of the book, The Nation That Never Was, which argues for a reset of the Constitutional baseline of principles. The book argues that the Gettysburg Address should be considered a key part of modern constitutional guarantees of equality and liberty. The review explains this thesis, and notes the questions it leaves open.

Symposium: Sexual Orientation, Gender Identity & The Constitution: Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh

ConLawNOW

Why is same-sex marriage a constitutional right of individual autonomy and dignity? Because of love. Based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, this essay will argue that Obergefell is best understood as an opinion about the centrality of love, not just marriage, for individual self-realization. It is love that helps make sense of Kennedy’s opinion. If love is not understood to be an essential aspect of Kennedy’s reasoning, then the opinion is rendered less coherent, emptied of much of its substance, and made vulnerable to critiques from both the right and …

Fourteenth Amendment Confrontation, Evan D. Bernick

College of Law Faculty Publications

Mr. Haley is one of the most memorable villains in all of American fiction. A “coarse” slave-trader whose “swaggering air of pretension” enrages readers of Harriet Beecher Stowe’s Uncle Tom’s Cabin from his appearance in the opening scene, Haley does his part to fulfill the novel’s purpose of strengthening the abolitionist cause. He is also not entirely fictional, and his creation is part of the constitutional history of the United States.

The real Haley was John Caphart, a slave-catcher hired by John DeBree of Norfolk, Virginia to capture Shadrach Minkins—an enslaved man who in 1851 fled from Virginia to Boston. …

Make Pennsylvania Free Again, Margaret Riley

The Compass

The author created this paper for a class assignment testing students’ knowledge of constitutional law. The assignment was to write a legal brief addressing the constitutionality of a statewide mask mandate during the COVID-19 pandemic. COVID-19 is an airborne disease that can be transmitted from person to person up to six feet apart. The hypothetical facts provided for this brief were that a suit was filed in Pennsylvania state court by a group of individuals in opposition to the state’s mask mandate that was enacted to address the COVID-19 pandemic. The goal of this brief is to demonstrate knowledge of …

The Supreme Court Decisions On Guns And Abortion Relied Heavily On History. But Whose History?, Allison Orr Larsen

Popular Media

No abstract provided.

Inherent Powers And The Limits Of Public Health Fake News, Michael P. Goodyear

St. John's Law Review

(Excerpt)

In a Vero Beach, Florida, supermarket, Susan Wiles rode her motorized cart through the produce aisle. In any year other than 2020 or 2021, this would have been a routine trip to the grocery store. But in 2020, Mrs. Wiles was missing an accessory that had become ubiquitous in society during that year: a face mask. Despite causing a commotion, Mrs. Wiles stood by her decision, claiming that the concerns about COVID-19 were overblown: “I don’t fall for this. It’s not what they say it is.” Mrs. Wiles’ statement is emblematic of the year 2020. This is not the …

Some Observations On Separation Of Powers And The Wisconsin Constitution, Chad M. Oldfather

Marquette Law Review

In recent years the Wisconsin Supreme Court has decided several high- profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy.

The Constitutional (And Political) Safeguards Against Impeachment, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Will the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the …

Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott Bloomberg, Robert A. Mikos

Pepperdine Law Review

Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate. This Article serves as a wake-up call. It provides the most extensive analysis to date of …

Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe

Law Faculty Scholarship

[Excerpt] "There is much to say about Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which was leaked from the United States Supreme Court on May 2 [2022].

Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the constitutionality of a Mississippi law that outlaws most abortions after 15 weeks of pregnancy, would be the restriction or elimination of abortion services throughout much of the nation. This will have all sorts of attendant consequences, large and smaller, many of which …

Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus

ConLawNOW

The Essay details how the primary premises underlying the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization regarding abortion rights are infirm as a matter of constitutional doctrine and precedent. It addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe …

Symposium: Sexual Orientation, Gender Identity & The Constitution: American Constitutions And Artificial Insemination Births, Jeffrey A. Parness

ConLawNOW

Childcare parentage issues arising from assisted reproduction births are subject to constitutional guidance, including due process, equal protection, and privacy dictates. Constitutional rights, however, sometimes go unrecognized in assisted reproduction laws, particularly for same sex couples, wed and unwed, as well as for single women. Upon a brief review of contemporary American state assisted reproduction laws, current and future constitutional precedents are explored. This analysis shows that constitutional, as well as public policy, reforms are particularly needed for same-sex female couples and single women employing assisted reproduction as intended parents.

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

William & Mary Bill of Rights Journal

Despite the vast body of theoretical work produced by originalist scholars, this literature fails to address how practicing judges and attorneys should apply originalist theories. All too often, academic originalists appear to write for an audience of other originalist scholars. This results in lengthy, technical, and heavily theoretical discussions. The question of how courts and judges are to apply these increasingly technical and theoretical originalist methods is left by the wayside. All too often, judges and attorneys cherry-pick from this body of scholarship to create a veneer of academic legitimacy for their own goal-oriented arguments.

We do not seek to …

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Scholarship

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

Symposium: Sexual Orientation, Gender Identity, & The Constitution: Queer Black Trans Politics And Constitutional Originalsim, Marc Spindelman

ConLawNOW

Queer Black trans politics offer an important frame for understanding the current constitutional moment. This is a moment in which the Supreme Court’s newly enthroned constitutional originalist project is taking off in ways that have race, sex, sexuality, and trans equality rights in its sights. Thinking with queer Black trans politics—and, in particular, their demands for intersectionality and for centering Black trans lives—this Essay presents a distinctive topology of LGBTQ rights and their intersections with constitutional race and sex guarantees. It considers how a queer Black trans-focused intersectional thinking plays out, including in the context of reproductive rights, and traces …

Symposium: Sexual Orientation, Gender Identity, & The Constitution: The Precarity Of Justice Kennedy's Queer Canon, Kyle C. Velte

ConLawNOW

This essay gives a brief overview of the legal and normative of impact of Justice Kennedy’s Queer Canon, a series of four LGBTQ cases written by Justice Kennedy over nearly two decades. The pro-LGBTQ outcomes in the Queer Canon cases made Justice Kennedy a hero to many LGBTQ people. It then explores Justice Kennedy’s fifth, and final, LGBTQ opinion, Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case, which held that a traditional Christian baker would prevail on his First Amendment Free Exercise challenge to a state public accommodations law, was not the finale hoped for by the LGBTQ …

Symposium: Sexual Orientation, Gender Identity, & The Constitution: Business Owners' Religious Objections To Same-Sex Marriage: The American Versus European Perspective, Lenka Křičková

ConLawNOW

This Article focuses on the Lee v. Ashers Baking Company case from the Supreme Court of the United Kingdom, a decision similar to that of the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Both cases involved bakers whose religious objections to same-sex marriage led them to refuse to sell cakes to gay customers. The Article discusses several common ideas appearing in these cases, mainly the need to distinguish between the message and the messenger when applying antidiscrimination law and the role of fundamental rights in the assessment. Based on this analysis, the Article then suggests …

A Balancing Act: Overcoming Incommensurability In Rights Adjudication, Samantha Knutson Jex

Brigham Young University Prelaw Review

The Supreme Court's current system for rights adjudication is insufficient in cases where both sides feel that a fundamental right has been violated, such as Masterpiece Cakeshop v. Colorado Civil Rights Commission. To overcome this insufficiency, I argue that the Court should implement a new test that is a modified combination of the Supreme Court's strict scrutiny and the test used internationally for rights adjudication--the proportionality test. I call this new test the "Incommensurability Test" and explain how it works and why it is beneficial for rights adjudication in the United States. Applying the "Incommensurability Test" would enable the Court …

The Ghost Of John Hart Ely, Ryan D. Doerfler, Samuel Moyn

Vanderbilt Law Review

The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no …

Deep-State Constitutionalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his …

Lochner's Revenge: Tiered Scrutiny And The Acceptance Of Judicial Subjectivity, Phillip J. Closius

University of Cincinnati Law Review

No abstract provided.

Symposium: Sexual Orientation, Gender Identity, & The Constitution: Suspect Classifications, Immutability, And Moral Responsibility, Michael Gentithes

ConLawNOW

This essay argues that when LGBTQ advocates raise equal protection arguments, they should resist the temptation to make immutability claims. Instead, they should acknowledge greater flexibility in the continuum of sexual orientation and gender identity, thereby avoiding traditional and binary immutability theory, and emphasize the lack of moral responsibility as a ground for strict scrutiny. Such arguments offer more traction for future cases rather than repeated efforts to suggest that sexuality is biologically determined or unalterable. This approach shifts the legal focus to the moral responsibility logic that lies behind traditional immutability theory, which may ultimately be more persuasive to …